Opinion
CIV-22-231-R
03-30-2023
KINDELL ADAIR, Petitioner, v. ABOUTANAA EL HABTI, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE.
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 1). Ms. El Habti has filed her Response to Petition for Writ of Habeas Corpus. (ECF No. 16). For the reasons set forth below, it is recommended that the Petition be DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Marion Cooper lived with Petitioner and had custody of his son, G.C., during the week. (Transcript of Jury Trial Proceedings had on the 12th day of February, 2019, Vol. II at 494-495, State of Oklahoma v. Adair, Case No. CF-2015-5585 (Okla. Co. Dist. Ct. Feb. 12, 2019) (Trial TR. Vol. II). On Tuesday, September 2, 2014, about 8:30 p.m., Mr. Cooper left G.C. in the custody of Petitioner, who was also watching two of Mr. Cooper's other sons, and her own child. Id. at 500-503. Mr. Cooper was gone from the home for approximately 2 hours, during which time was in communication with Ms. Adair who told Mr. Cooper that G.C. had gotten sick and was throwing up. Id. at 504. At approximately 10:30 p.m., Mr. Cooper arrived home and checked on G.C., who was asleep in bed. Id. at 506. The following morning, Petitioner found G.C., lying on the bed, face down, deceased. Id. at 508.
Following an investigation, Petitioner was charged with felony Child Abuse, in violation of 21 O.S. § 843.5, in Oklahoma County District Court Case No. CF-2015-5585. Original Record at 1, State of Oklahoma v. Adair, Case No. CF-2015-5585 (Okla. Co. Dist. Ct. July 22, 2015) (O.R.). On February 20, 2019, following a six-day trial, a jury convicted Petitioner of Child Abuse and on March 7, 2019, the Court sentenced Petitioner to 20 years incarceration. (ECF No. 1:1).
On September 10, 2020, the Oklahoma Court of Criminal Appeals (OCCA) affirmed Ms. Adair's conviction. (ECF No. 16-1). On September 13 and 21, 2021, Petitioner filed an Application for Post-Conviction Relief and an Amended Application for Post-Conviction Relief, respectively, in the Oklahoma County District Court. See State Court Docket Sheet, State of Oklahoma v. Adair, Case No. CF-2015-5585 (Okla. Co. Dist. Ct. September 13 & 21, 2021). The district court struck the Application and dismissed the Amended Application. (ECF No. 16-4).
On October 13, 2021, Petitioner filed another Amended Application for PostConviction Relief in the Oklahoma County District Court. (ECF No. 16-5). On November 22, 2021, the district court denied the application and on March 14, 2022, the OCCA affirmed the denial. (ECF Nos. 16-7 & 16-9). On March 21, 2022, Ms. Adair filed a habeas Petition in this case, alleging the following nine grounds for relief:
• Improper admission of other crimes evidence;
• Error by the trial court in denying defense counsel's motion for a new trial;
• Ineffective assistance of appellate counsel;
• Ineffective assistance of trial counsel;
• Actual Innocence;
• Error by the trial court in failing to bifurcate the trial;
• Error by the trial court in failing to properly instruct the jury;
• A lack of jurisdiction by the trial court over “unappropriated lands;” and
• A lack of jurisdiction by the trial court pursuant to the Major Crimes Act.(ECF Nos. 1:5-35).
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) governs this Court's power to grant habeas corpus relief. Under the AEDPA, the standard of review applicable to each claim depends upon how that claim was resolved by the state courts. Coddington v. Sharp, 959 F.3d 947, 952 (10th Cir. 2020).
“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 98 (2011).
For claims adjudicated on the merits, “this [C]ourt may grant . . . habeas [relief] only if the [OCCA's] decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' or ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Hanson v. Sherrod, 797 F.3d 810, 814 (10th Cir. 2015) (citation omitted). “It is the petitioner's burden to make this showing and it is a burden intentionally designed to be ‘difficult to meet.' ” Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (citation omitted). The deference embodied in § 2254(d) “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at 102-103 (citation omitted).
This Court first determines “whether the petitioner's claim is based on clearly established federal law, focusing exclusively on Supreme Court decisions.” Hanson, 797 F.3d at 824. “A legal principle is ‘clearly established' within the meaning of this provision only when it is embodied in a holding of [the United States Supreme Court.]” Thaler v. Haynes, 559 U.S. 43, 47 (2010). If clearly established federal law exists, this Court then considers whether the state court decision was contrary to or an unreasonable application of clearly established federal law. See Owens, 792 F.3d at 1242.
“A state court's decision is ‘contrary to' clearly established federal law ‘if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.'” Id. (citations omitted). Notably, “[i]t is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be ‘diametrically different' and ‘mutually opposed' to the Supreme Court decision itself.” Id. (citation omitted).
The “unreasonable application” prong requires the petitioner to prove that the state court “identifie[d] the correct governing legal principle from [Supreme Court] decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Id. (citation omitted). On this point, “the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was ‘objectively unreasonable.'” Id. (citations omitted, emphasis in original). So, to qualify for habeas relief on this prong, a petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 1242-43 (citation omitted). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
In sum, “[u]nder § 2254(d), a habeas court must determine what arguments or theories supported . . . the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington, 562 U.S. at 101-02. Relief is warranted only “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.” Id. at 102.
Finally, a federal habeas court must “accept a state-court [factual] finding unless it was based on ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Davis v. Ayala, 135 S.Ct. 2187, 2199 (2015). In other words, when the state appellate court makes a factual finding, the Court presumes the determination to be correct; a petition can only rebut this presumption with clear and convincing evidence. See id. at 2199-22; see also 28 U.S.C. § 2254(e)(1).
If the state appellate court has not addressed the merits of a claim, the Court exercises its independent judgment. See Littlejohn v. Trammel, 704 F.3d 817, 825 (10th Cir. 2013) (“For federal habeas claims not adjudicated on the merits in state-court proceedings, we exercise our 'independent judgment[.]'”) (citation omitted). “And, even in the setting where we lack a state court merits determination, '[a]ny state-court findings of fact that bear upon the claim are entitled to a presumption of correctness rebuttable only by clear and convincing evidence.'” Grant v. Royal, 886 F.3d 874, 889 (10th Cir. 2018) (quoting 28 U.S.C. § 2254(e)(1)) (internal citation omitted).
III. GROUND ONE
In Ground One, Petitioner asserts the trial court improperly admitted other crimes evidence, rendering her trial fundamentally unfair. (ECF No. 1:5-8). The Court should conclude that habeas relief is not warranted on Ground One.
A. The Other Crimes Evidence
Prior to trial, the State sought to introduce evidence of “other crimes”-namely testimony and evidence related to a 2005 incident wherein Petitioner had shot her domestic partner, Christopher Simmons. (O.R. 72-74). On the morning of trial, the Court ruled the evidence admissible following a hearing. (Transcript of Jury Trial Proceedings had on the 11th day of February, 2019, Vol. I at 88-89, State of Oklahoma v. Adair, Case No. CF-2015-5585 (Okla. Co. Dist. Ct. Feb. 11, 2019) (Trial TR. Vol. I). On day three of trial, retired Oklahoma City Police Inspector Donald Hodges testified concerning the 2005 incident-namely regarding the fact that upon investigating the incident, Ms. Adair made inconsistent and conflicting statements regarding what had happened, at first stating that she did not know how Mr. Simmons had been shot. (Transcript of Jury Trial Proceedings had on the 13th day of February, 2019, Vol. I at 732-740, State of Oklahoma v. Adair, Case No. CF-2015-5585 (Okla. Co. Dist. Ct. Feb. 13, 2019)) (Trial TR. Vol. III). Following more questioning, Inspector Hodges arrested Ms. Adair for shooting Mr. Simmons, and ultimately, she admitted to the crime and pled guilty. Id. at 740-741. The State also introduced photographs of Mr. Simmons, depicting his injuries. See State's Exhibits 65 & 68, State of Oklahoma v. Adair, Case No. CF-2015-5585 (Okla. Co. Dist. Ct.). During closing argument, the prosecutor referenced the other crimes evidence by saying that Ms. Adair had lied to investigators during the 2005 incident and had established a “pattern of lying.” (Transcript of Jury Trial Proceedings had on the 20th day of February, 2019, Vol. VI at 732-740, State of Oklahoma v. Adair, Case No. CF-2015-5585 (Okla. Co. Dist. Ct. Feb. 20, 2019)) (Trial TR. Vol. VI).
B. Petitioner's Direct Appeal and the OCCA's Decision
On Direct Appeal, Petitioner argued that the trial court's admission of the other crimes evidence deprived her of a fair trial, arguing: (1) the evidence was admitted for an improper purpose (to show Petitioner's propensity to lie) and (2) the connection between the two offenses (the 2005 shooting and the instant charge of felony child abuse) was too tenuous to admit the evidence. (ECF No. 16-2:7-13).
As an initial matter, it is imperative that the Court determine whether Ms. Adair had raised a constitutional issue on direct appeal. Although Petitioner did not expressly cite the Due Process Clause of the Fourteenth Amendment, it is reasonable to read Ms. Adair's claim on Direct Appeal as alleging more than just a state-law evidentiary error. As stated, Petitioner claims that the admission of other crimes evidence was so harmful and prejudicial that it “deprived her of a fair trial.” (ECF No. 16-2:13). Given her pro se status, the Court should conclude that this allegation is sufficient to allege a constitutional violation of her right to Due Process. See Littlejohn v. Crow, 2021 WL 3074171, at *11 (N.D. Okla. July 20, 2021) (pro se prisoner's claim that admission of testimony “deprived him of a fair trial” was sufficient to invoke a claim under the Fourteenth Amendment's Due Process Clause).
Here, the OCCA recognized that Ms. Adair had argued the denial of a fair trial. See ECF No. 16-1:2. In reviewing the claim for an abuse of discretion, the OCCA agreed that the evidence was wrongly admitted, stating: “Evidence that approximately ten years before the charged offense, [Ms. Adair] shot her domestic partner is not probative of whether or not the injuries inflicted upon G.C. were by mistake or accident. No logical connection between the two crimes was established. We find that trial court abused its discretion in admitting evidence of the prior shooting.” (ECF No. 16-1:4).
Even so, the OCCA ultimately concluded that the error was harmless, stating:
[T]he evidence did not have a substantial influence on the outcome, or leave this Court in grave doubts as to whether it had such effect. See Simpson v. State, 1994 OK CR 40, ¶ 37, 876 P.2d 690, 702. In light of the strong evidence of guilt, and the instruction to the jury not to consider the challenged evidence as proof of guilt, no reasonable juror would have convicted [Ms. Adair] based upon the improperly admitted evidence.(ECF No. 16-1:4).
C. Error by the OCCA
It is well established that on direct appeal, a constitutional error may be deemed harmless only after the State “prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24 (1967). See Saiz v. Burnett, 296 F.3d 1008, 1012 (10th Cir. 2002) (noting that the “harmless beyond a reasonable doubt” standard articulated by Chapman is the proper standard for state courts to apply when evaluating alleged instances of constitutional error on direct appeal). But here, the OCCA did not require the State to meet the Chapman standard of harmlessness. Instead, citing its own decision in Simpson v. State, 876 P.2d 690, 702 (Okla. Crim. App. 1994), the OCCA ruled the erroneous admission of evidence to be harmless because the evidence “did not have a substantial influence on the outcome, or leave [the OCCA] in grave doubts as to whether it had such effect.” (ECF No. 16-1:4).
Simpson addressed the standard of review to be applied where an appellant urges fundamental error as “a vehicle to bring before [the OCCA] on appeal alleged errors which would otherwise be waived by failure to object at trial.” Simpson, 876 P.2d at 701. In Simpson, the court made clear that where fundamental error does not amount to constitutional error, the appellant retains the burden of proving its substantial influence on the outcome of his trial. Id. at 701-702 (recognizing that constitutional errors are subject to harmless-error analysis under the reasonable-doubt standard set forth in Chapman, and adopting the less demanding standard set forth in Kotteakos v. United States, 328 U.S. 750, 776 (1946) for nonconstitutional errors).
Here, no fair-minded jurist could reasonably conclude that the Simpson harmless error standard applied by the OCCA comported with Chapman' requirement that the State prove a constitutional error to be harmless beyond a reasonable doubt. See Jones v. Workman, 98 F.Supp.3d 1179, 1197 (W.D. Okla. Apr. 7, 2015), vacated as moot, (stating that the OCCA's use of Simpson to adjudicate constitutional claim was incorrect, with the correct standard being Chapman). Accordingly, the Court should conclude that the OCCA's harmlessness determination is contrary to clearly established Supreme Court authority. See Turrentne v. Mullin, 390 F.3d 1181, 1190 (10th Cir. 2004) (holding harmless error determination contrary to Supreme Court authority as the OCCA failed to apply the appropriate harmless error test on direct appeal).
D. No Habeas Relief
The OCCA's application of an improper harmless error test to Petitioner's constitutional error, alone, is insufficient to entitle Petitioner to relief. Instead, to determine whether relief is warranted, this Court must conduct a de novo harmless error analysis applying the standard articulated in Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). See Fry v. Pier, 127 S.Ct. 2321, 2328 (2007) ('“We hold that in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a statecourt criminal trial under the "substantial and injurious effect” standard set forth in Brecht, supra, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the 'harmless beyond a reasonable doubt' standard set forth in Chapman[” Littlejohn, 2021 WL 3074171, at *11, n. 17 (applying de novo review under Brecht to habeas petitioner's claim alleging state court violated his Due Process rights in admitting evidence, when OCCA applied Simpson instead of Chapman in adjudicating the claim on direct appeal).
Under Brecht, the court must determine whether a constitutional error had a "substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 637-638. In other words, the petitioner must establish actual prejudice. See id. The Tenth Circuit Court of Appeals has stated that "[a]n error may be deemed to have a substantial and injurious effect under Brechts rubric when a conscientious judge [is left] in grave doubt about the likely effect of an error on the jury's verdict.” Grant v. Royal, 886 F.3d 874, 955 (10th Cir. 2018). The Court should conclude that no such doubt exists here.
As stated, Ms. Adair was convicted of child abuse in violation of 21 O.S. § 843. See supra. In accordance with the statute, the jury was instructed that a guilty verdict required them to conclude, beyond a reasonable doubt, that the following elements of the crime had bene met:
1. A person (Ms. Adair) willfully or maliciously;
2. injured;
3. a child under the age of eighteen.See 21 O.S. § 843; O.R. 258. In light of the overwhelming evidence of guilt and the jury instruction to not consider the other crimes evidence as proof of guilt regarding the crime charged, the Court should have no such grave doubt as to whether the admission of the other crimes evidence had a substantial and injurious effect on the jury.
For example, Dominique Adair, Petitioner's sister, testified that the evening before G.C. was found deceased in his bed, Petitioner, Mr. Cooper and the children, including G.C., spent time at her house from approximately 4:30 p.m. to 8:00 p.m., and when they left, everyone was fine. (Trial TR. Vol. II at 452-453). Once back home, Mr. Cooper left again around 8:30, and at that time, he testified that everyone was acting normal and things seemed fine. Id. at 500-503. When he arrived home later that evening, he checked on G.C. who was “resting and asleep.” Id. at 505.
According to Petitioner, around 10:00-10:30, p.m. she heard G.C. coughing and upon entering his room she discovered that he had vomited. (Transcript of Jury Trial Proceedings had on the 15th day of February, 2019, Vol. V at 1110, State of Oklahoma v. Adair, Case No. CF-2015-5585 (Okla. Co. Dist. Ct. Feb. 15, 2019) (Trial TR. Vol. V). Petitioner got G.C. out of bed and retrieved some baby wipes from the hallway. Id. at 1111. When she turned back around, she found that G.C. had vomited again and had slipped and fallen in it. Id. at 1111-1112. Petitioner then took G.C. to the sink to rinse his hair. Id. at 1112. When initially interviewed by police, Ms. Adair denied that she could have hit G.C.'s head on the sink when rinsing it, but later in a police interview, she stated that she had nicked his head on the faucet. (Transcript of Jury Trial Proceedings had on the 14th day of February, 2019, Vol. IV at 1110, State of Oklahoma v. Adair, Case No. CF-2015-5585 (Okla. Co. Dist. Ct. Feb. 14, 2019) (Trial TR. Vol. IV). At trial, Petitioner again initially denied hitting his head on the faucet, but “remembered” when reminded of her statement during her police interview. (Trial TR. Vol. VI. at 1113. Additionally, in her second interview with police, Petitioner stated that G.C. could have hit his head when he turned too sharply entering the bedroom and hit a wall or he might have bumped into a corner while going to the shower. (State's Exhibit 62). Petitioner did not provide these explanations when initially interviewed by police at the scene of the crime. Finally, after the interview, Petitioner told a police detective that she had “figured it out” and explained that when playing Ring Around the Rosie with G.C. she had grabbed him by the ankles and swung him up and down and hit his head a few times on the ground. (Trial TR. Vol. IV at 862-864). However, at trial Petitioner denied swinging G.C. around by his ankles, stating “We don't play like that. That's dangerous.” (Trial Tr. Vol. V at 1136).
Oklahoma City Chief Medical Examiner Dr. Eric Pfeifer performed the autopsy on G.C. and noted four distinct points of blunt force trauma to the child's head. (Trial TR. Vol. III 672-674, 677, 683-684. Dr. Pfeifer also observed a four-centimeter hairline fracture that extended from the lower right side of G.C.'s skull to the hole in the base of the skull through which the spinal cord passes. (Trial TR. Vol. III at 693, 697). According to Dr. Pfeifer, the skull is “a pretty strong,” “hard” bone which requires significant force to break. Id. at 774-775. Dr. Pfeifer also testified that G.C. would not have been “symptomatically normal” after such a skull injury, meaning he would “certainly not [be] exhibiting normal behavior.” Id. at 662, 707. Although Dr. Pfeifer was unable to opine whether G.C. died from suffocation or his head injuries, Dr. Pfeifer did testify that the head injuries that G.C. sustained were from “nonaccidental trauma” and he believed that G.C. had been physically abused. Id. at 705-706.
Also testifying for the State was Dr. Ryan Brown-attending physician at Children's Hospital Oklahoma University specializing in child abuse. According to Dr. Brown, based on the number of injuries on G.C.'s head and their locations, G.C. had been physically abused, and his injuries contributed to his death. Id. at 788. Dr. Brown stated that following the injuries of the type G.C. sustained, he would have exhibited with a headache, vomiting, dizziness, fussiness, and/or nausea. Id. at 786. Dr. Brown also testified that he did not believe G.C.'s skull fracture had been caused by a mere “slip and fall” and the type of behavior described by Petitioner in playing Ring Around the Rosie with G.C. would be considered abusive. Id. at 772-782, 790.
In sum, the jury heard evidence that:
• the type of head injury sustained by G.C. would have caused him to behave abnormally or exhibit signs or symptoms related to the injury;
• G.C. was fine and acting normal when he left Petitioner's sister's house;
• Petitioner was alone with G.C. after the family arrived home for approximately two hours;
• The head injuries received by G.C. were from “nonaccidental trauma”
• The head injuries were likely not caused by G.C. slipping and falling in his vomit; and
• The Ring Around the Rosie behavior as described by Petitioner (then later recanted) was “abusive.”
From this evidence, it was reasonable for the jury to infer that Ms. Adair, who was alone with G.C. prior to his death, “willfully” “injured” two-year-old G.C., which is all that was required for a conviction under Section 843. In addition to the evidence of guilt, the jury was instructed that it was not to consider the prior crimes evidence as proof that she was guilty of the crime charged. (O.R. 266).
Ultimately, the other crimes evidence may have had an impact on Ms. Adair's trial, but the “effect or influence in determining the jury's verdict” did not rise to the level of “substantial and injurious.” The testimony from the medical examiner and Dr. Brown, along with Petitioner's ever-changing story, provided a strong basis for a finding of guilt and the curative instruction to the jury further lessened the impact of the other crimes evidence. Based on the foregoing, the Court should conclude that: (1) under Brecht, the admission of the other crimes evidence was harmless, and (2) habeas relief is not warranted on Ground One.
IV. GROUND TWO
In Ground Two, Petitioner asserts that the trial court impermissibly denied defense counsel's motion for a mistrial and instead coerced the jury into entering a guilty verdict by giving them an Allen instruction. (ECF No. 1:8-11). The Court should conclude that habeas relief is not warranted on Ground Two.
An Alen instruction is "a supplemental instruction given to the jury and designed to encourage a divided jury to agree on a verdict.” United States v Rvera, 554 Fed.Appx. 735, 741 (10th Cir. 2014) (citing United States v. LaValee, 439 F.3d 670, 689 (10th Cir. 2006)).
A. CHARACTERIZATION OF GROUND TWO
In the habeas petition, Ms. Adair quotes, verbatim, “Proposition II” of her Direct Appeal brief wherein she initially raised the argument. Compare ECF No. 1:8-11 with ECF No. 16-2:14-21. As stated, Ms. Adair argued that the trial court committed an abuse of discretion in failing to grant a mistrial in favor of giving the jury an Alen instruction. See ECF No. 1:8 & 16-2:14. In both pleadings, Ms. Adair very specifically and plainly argued that the Allen instruction coerced the jury into rendering a verdict. See ECF No. 1:8-11 & 16-2:14-21. Respondent argues that Petitioner has asserted only a state law claim and, therefore, Ground Two is not cognizable on habeas review. See ECF No. 16:24-26. The Court should disagree, however, as the United States Supreme Court has explicitly stated that there exists a “constitutional rule against coercive jury instructions” -the exact nature of Petitioner's argument.
See supra, Wong.
Furthermore, in adjudicating Petitioner's Direct Appeal, the OCCA reviewed the claim for an abuse of discretion-and found none. See ECF No. 16-1:5, 8. This finding constituted a “plain error” review by the OCCA. See Eizember v. Trammel, 803 F.3d 1129, 1138, n.1 (10th Cir. 2015). The Tenth Circuit Court of Appeals has held that “Oklahoma's formulation of the plain-error standard is virtually identical to the constitutional test for due process.” Hancock v. Trammel, 798 F.3d 1002, 1011 (10th Cir. 2015). So, when the OCCA rejected Petitioner's claim under the plain-error standard, the decision “effectively disallowed the possibility of a due process violation.” Id. at 1011. The OCCA's treatment of the claim further bolsters a characterization of Ground Two as asserting a constitutional claim and the undersigned will proceed accordingly.
B. THE JURY DELIBERATIONS/THE ALLEN CHARGE
During jury deliberations, the jury sent three notes to the Court-at approximately 1:50 p.m., 5:30 p.m., and 8:06 p.m.-which inquired regarding what might happen if the jury could not reach a unanimous verdict. (Trial TR. Vol. VI at 1281); (ECF No. 1:8-9). Subsequent to the last note, the following exchange occurred between the trial judge and the jury foreman:
COURT: “Is everyone still engaged and working on getting to a verdict?”
FOREMAN: In my opinion, no, ma'am, we are not. Most of us are, but there's a hold out that's not contributing to the discussion in any way.
COURT: All right. Is there any chance that this individual-and do not identify who it is, please-but is there any chance this individual can re-engage in the process if-is there a way that you can articulate, is there an issue that divides the jury or that there is not engagement in the deliberations at all?
FOREMAN: I don't believe there is going to be any further engagement at all.
I've asked this particular individual if they would, you know, try to, you know, engage in the discussion to kind of elaborate on reasons for their opinion at this point on the verdict and just adamant on this is what I said, I'm not saying any more.(Trial TR. Vol. VI at 1280-1281).
At that point, the jury was dismissed and defense counsel moved for a mistrial. (Trial TR. Vol. VI at 1281). In doing so, defense counsel stated that she did not think “that giving an Allen charge is going to change the situation.” Id. In turn, the prosecutor advocated the giving of an Allen instruction, and the Court agreed. Id. at 1282-1283. The Court recalled the jury into the courtroom and gave the following Allen instruction:
You report to me that you are experiencing difficulty in arriving at a verdict. This is an important case and a serious matter to all concerned. You are the exclusive judges of the facts and the Court is the judge of the law. Now I most respectfully and earnestly request of you that you return to your jury room and resume your deliberations. Further open and frank discussion of the evidence in law submitted to you in this case may aid you at arriving at a verdict. This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision. No juror should ever agree to a verdict that is contrary to the law and the Court's instructions nor find a fact or concur in a verdict which is in good conscience he or she
believes to be untrue. This does not mean that you should give-sorry. Excuse me. This does mean that you should give respectful consideration to each other's views and talk over any differences of opinion in the spirit of fairness and candor. If it all possible you should resolve any differences and come to a common conclusion that this case may be completed. each juror should respect the opinion of his fellow jurors as he or she would have then his or hers in an earnest and diligent effort to arrive at a jury verdict under the law and the evidence.
You may be as leisurely in your deliberations as the case m[a]y require and take all the time necessary. The giving of this instruction at this time in no way means that it is more important than any other instruction. On the contrary, you should consider this instruction together with as part of the instructions which I previously gave to you. in stating the foregoing, I can repeat you are the judges of the facts. The Court is the judge of the law. In making all statements to you, I have not nor do I now express or indicate in any way the conclusions to be reached by you in this case nor do I intend in any way or manner to coerce a verdict nor directly or indirectly to force a verdict in this case. I only ask that you return to your jury room and again diligently and earnestly under your oath resume your deliberations.(Trial TR. Vol. VI at 1283-1285).
C. THE OCCA'S DECISION
As stated, Petitioner presented this issue on Direct Appeal. See supra. Reviewing for an abuse of discretion, the OCCA denied the claim, stating:
Appellant acknowledges that this Court has found no error in the giving of Allen instructions after the jury has announced itself to be deadlocked and after several hours of deliberation. Gilbert v. State, 1997 OK CR 71, PARA 57, 951 P.2nd 98, 114. We reiterated in Gilbert that "it is not improper for a trial judge, after a jury has been deliberating for some time, to call them into court to ascertain whether there is a reasonable probability of reaching a verdict so long as the judge exercise is great caution to say nothing to course in agreement or to indicate his feelings in the case.”
Appellant argues that coercion “was exactly what happened in her case” and that as a result of the court repeatedly sending the jury back into deliberations, it was clear to the lone holdout juror that's the only way he/she was going home was to surrender his/her honestly held belief.
Initially, the length of time a jury deliberates is within the discretion of the trial judge. The seven (7) hour deliberation before the Allen instruction was given in this case was not extraordinary. The jury's first asking about the consequences of failing to reach a unanimous verdict came after only approximately two (2) hours of deliberations. Appellant has offered no support, legal or factual, for his claim that sending the jury back to deliberate under the admonition to “please continue your deliberations to reach a unanimous verdict” was coercive.
Further, appellant has failed to show that the Allen instruction given to the jury was coercive. The instruction specifically tells the jurors in part not to “surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.” In light of the well-established principle that “the jury is presumed to follow its instructions”, we find unpersuasive Appellant's speculation that even after receiving this explicit instruction, a juror was coerced into changing his or her verdict. The facts and circumstances of the case do not support a conclusion that the Allen instruction had a coercive effect on the jury or the verdict. For all of the above reasons, we find the trial court did not abuse its discretion and denying the request for a mistrial and instead giving the jury the Allen instruction. This proposition of error, and this appeal, is denied.(ECF No. 16-1:6-8).
D. Clearly Established Law
“The clearly established law” “against coercive jury instructions” is “sparse.” Wong v. Smith, 562 U.S. 1021, 131 S.Ct. 10, 11 (2010). "About all that can be said is that coercive instructions are unconstitutional, [and] coerciveness must be judged on the totality of the circumstances . . . .” Id. at 11-12. However, the "use of a supplemental [jury] charge has long been sanctioned.” Lowenfeldv. Pheps, 484 U.S. 231, 237 (1988). Indeed, the Supreme Court first sanctioned a supplemental jury instruction-wherein the judge urged the deadlocked minority jurors to consider the views of the majority, and ask themselves “whether their own views were reasonable under the circumstances”- almost a century ago in Allen v. United States, 164 U.S. 492 (1896). Id.
A proper Allen instruction “encourages unanimity (without infringement upon the conscientious views of each individual juror)” and urges jurors “to review and reconsider the evidence in the light of the views expressed by other jurors, in a manner evincing a conscientious search for truth rather than a dogged determination to have one's way in the outcome of the deliberative process.” Gilbert v. Mullin, 302 F.3d 1166, 1173 (10th Cir. 2002). A “traditional Allen charge” has had "continuing validity” in the Supreme Court. Whether such a jury instruction "improperly coerced [the jury] requires that [the court] consider the supplemental charge given by the trial court in its context and under all the circumstances.” Lowenfeld, 484 U.S. 231, 237.
A court sitting in habeas review of an allegedly coercive Allen charge is directed to consider the supplemental instruction "in its context and under all the circumstances/'Id. (quoting Jenkins v. United States, 380 U.S. 445, 446 (1965)). Among the factors, often referred to as the Lowenfeld factors, a court should consider are: (1) the specific language of the Allen charge; (2) whether the Allen charge was given alone or with other instructions; (3) the timing of the instruction; and (4) the length of the jury's postinstruction deliberation. See Gilbert, 302 F.3d at 1173-76 (citing United States v. Arney, 248 F.3d 984 (10th Cir. 2001)).
E. No Habeas Relief
Considering the four factors, the Court should conclude that the OCCA's decision on this issue was neither contrary to, nor involved an unreasonable application of, Supreme Court law.
First, to the language factor, the trial judge stated: “In making all statements to you I have not nor do I now express or indicate in any way the conclusions to be reached by you in this case nor do I intend in any way or manner to coerce a verdict in this case.” (Trial TR. Vol. VI. at 1285). Based on the judge's explicit language that she was not attempting to “coerce” a verdict, the Court should conclude that this factor weighs against coercion.
Second, the Allen instruction in this case was not given at the same time as the other jury instructions, but after the trial judge was informed that the jurors were having difficulty reaching a unanimous decision, with two jurors holding out. See supra. Although courts have found pre-deadlock instructions to be less coercive than those given during deliberation, there is no per se rule against a supplemental Allen charge. Numerous courts have found non-coercive Allen charges given after notification of impasse. See Gilbert, 302 F.3d at 1174; United States v. Arney, 248 F.3d 984, 989 (10th Cir. 2001) (collecting cases). This factor weighs neutral.
Third, regarding the riming of the instructions, deliberations began in early afternoon, and at some point, when it was clear that deliberations were going to extend into the evening, the jurors took a break for dinner, and the Court allowed for jurors to move their cars and make childcare arrangements. These actions indicated that it was likely deliberations would go into the evening. The timing factor weighs against coercion.
Finally, the jury deliberated for approximately 90 minutes after the court issued the Allen instruction. See ECF No. 16-1:6. While courts have recognized that a jury returning a verdict shortly after receiving an Allen charge could weigh in favor of coercion, hour-long post-Allen deliberations have been repeatedly upheld. See Gilbert, at 1175; Arney, at 990. This factor weighs against coercion.
Based on the forgoing, the Court should conclude that the OCCA's determination that the Allen charge was not coercive was neither contrary to, nor an unreasonable application of, Supreme Court precedent. Accordingly, the Court should deny habeas relief on Ground Two.
V. GROUND THREE
In Ground Three, Petitioner alleges that her appellate counsel was ineffective for failing to argue Petitioner's actual innocence, and for failing to raise, on direct appeal, that trial counsel had been ineffective for failing to: (1) present expert testimony and (2) object to the trial court's failure to bifurcate her trial. (ECF No. 1:18-20). Ms. Adair presented these claims to the OCCA in her appeal of the Oklahoma County District Court's denial of her Amended Application for Post-Conviction Relief. See ECF No. 16-8:2-8. In adjudicating the claim, the OCCA examined the merits of the underlying issues involving trial counsel's alleged ineffectiveness utilizing the appropriate standard under Strickland v. Washington. (ECF No. 16-9:3-5). Ultimately, the OCCA stated: "[b]ecause the underlying claims asserted in Proposition 1 lack merit, Petitioner cannot demonstrate appellate counsel's ineffectiveness.” (ECF No. 16-9:5). The Court should defer to the OCCA's decision and conclude that it is neither contrary to, nor an unreasonable application of, Supreme Court precedent.
See infra.
1. Clearly Established Law
The Supreme Court established the ineffective assistance of counsel standard in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant is entitled to relief if (1) counsel's performance was deficient, and (2) the defendant was thereby prejudiced. Id. at 687-88. A defendant establishes the first Strickland requirement by showing counsel's performance "fell below an objective standard of reasonableness.” Id. To meet this requirement, the defendant must overcome a "strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance . . . [and] might be considered sound trial strategy.” Id. at 689 (quotations omitted). A defendant establishes the second requirement of prejudice by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Notably, a court reviews an ineffective assistance of counsel claim from the perspective of counsel at the time he or she rendered the legal services, not in hindsight. See id. at 680.
“Surmounting Strickland's high bar is never an easy task.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotation marks and citation omitted). “Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult [as] [t]he standards created by Strickland and § 2254(d) are both highly deferential and when the two apply in tandem, review is doubly so.” Id. (internal quotations marks and citations omitted). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. "[I]n analyzing an appellate ineffectiveness claim based upon the failure to raise an issue on appeal, [a court] look[s] to the merits of the omitted issue[.]” Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (citations and internal quotation marks omitted). "[O]f course, if the issue is meritless, its omission will not constitute deficient performance.” Id. Absent a "reasonable probability” that the omitted claim would have resulted in relief, there is no ineffective assistance of appellate counsel. Neill v. Gibson, 278 F.3d 1044, 1057 & n.5 (2001).
2. Denial of Habeas Relief Based on the OCCA's Holding
"[T]his Court has repeatedly held that when 'the OCCA addresses an ineffective assistance of appellate counsel claim on the merits, and concludes, in essence, that it would not have reached a different outcome had the appellate counsel raised the omitted claims on direct appeal, the Court can already be assured that appellate counsel's conduct was not prejudicial under Strickland.' ” Christian v. Farris, No. CIV-13-1325-C, 2017 WL 1088371, at *10 (W.D. Okla. Jan. 13, 2017) (unpublished report and recommendation) (citation omitted), adopted, 2017 WL 1082473 (unpublished district court order), certificate of appealability denied, 701 Fed.Appx. 717 (10th Cir. 2017). Based on that theory alone, this Court has denied habeas relief on ineffective assistance of appellate counsel claims, see id., and the Tenth Circuit has concluded "that reasonable jurists wouldn't debate the ... assessment[.]" Christian, 701 Fed.Appx. at 721. So, on this basis, the Court should: (1) find that the OCCA's analysis utilizing Strickland was a reasonable application of federal law and (2) conclude that habeas relief is not warranted on Ground Three. See Dyer v. Farris, No. CIV-16-941-C, 2018 WL 5931129, at *5-6 (W.D. Okla. July 6, 2018), adopted, 2018 WL 5929637 (W.D. Okla. Nov. 13, 2018) (unpublished district court order); see also Pradia v. McCollum, No. CIV-13-385-D, 2016 WL 3512034, at *12 (W.D. Okla. May 10, 2016), adopted, 2016 WL 3512264 (W.D. Okla. June 22, 2016); Jackson v. Martin, No. CIV-12-702-W, 2013 WL 5656105, at *1, *4 (W.D. Okla. Oct. 15, 2013) (collecting cases where this Court has held that a petitioner cannot establish appellate counsel's ineffectiveness where the OCCA has announced already that "the outcome of the state appeal would not have changed had appellate counsel raised the relevant claim" (citation omitted)), certificate of appealability denied, 572 Fed.Appx. 597 (10th Cir. 2014).
VI. GROUND FOUR
In Ground Four, Petitioner alleges that she received ineffective assistance of trial counsel. (ECF No. 1:18-20). Petitioner raised this argument to the OCCA as Proposition Two in her appeal of the Oklahoma County District Court's denial of her Amended Application for Post-Conviction Relief. See ECF No. 16-8:19. The OCCA affirmed the Oklahoma County District Court's finding that the claim was procedurally barred. (ECF No. 16-9:2). The Court should bypass the procedural default and conclude, on the merits, that habeas relief is not warranted on Ground Four.
Federal habeas review is generally barred where the prisoner “defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule,” unless the prisoner can demonstrate cause for the default and “actual prejudice” resulting from the alleged violation. Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012). However, “where the claim may be disposed of in a straightforward fashion on substantive grounds,” the Court may “bypass the procedural bar and reject the claim on the merits.” Smith v. Duckworth, 824 F.3d 1233, 1242 (10th Cir. 2016) Because Ground Four is readily resolved on the merits, the Court should bypass the procedural issues.
A. Clearly Established Law
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established the standard to evaluate claims alleging ineffective assistance of counsel. See supra.
B. No Habeas Relief
Petitioner alleges her trial counsel was ineffective for “fail[ing] to present that the petitioner could not have caused the injuries.” (ECF No. 1:18). Ms. Adair states that although the Medical Examiner testified that the injuries which led to G.C.'s death occurred “within 36-48 hours of death,” there was a “possibility of the time-frame being much shorter than that” based on “the Iron Staining test.” (ECF No. 1:18). In support of her claim, Petitioner states:
The record established that counsel did not take advantage of any of the resources as his disposal to educate himself on issues related to abusive head trauma, the particular medical issues relating to this child, and leads on expert witnesses. The records and information provided to him by the Petitioner were not utilized in her defense.
...
Had said evidence been presented to the jury, absent due to the ineffectiveness of Petitioner's trial counsel, the outcome of her trial could have been vastly different.(ECF No. 1:20).
The problem with Petitioner's allegations is that they are vague and conclusory. For example, Petitioner indicates that an Iron Staining test showed the possibility of a shorter time frame between when G.C. was injured and his death than what the Medical Examiner had testified. But Ms. Adair fails to explain how a shorter time frame would have led to her acquittal-i.e.-she has failed to demonstrate prejudice under Strickland. And although Petitioner references “resources” and “medical issues” and “leads,” she fails to: (1) provide the Court with any particular information regarding the same and (2) explain how “the outcome of her trial would have been vastly different had said evidence been utilized by her trial counsel. At the end of her argument, Petitioner does provide specific information on one witness, G.C.'s father's cousin, whom Ms. Adair alleges counsel failed to subpoena. (ECF No. 1:20). According to Petitioner, this individual “had seen the victim on Saturday and he had felt the lumps/bumps that were on his head [and] [h]ad counsel subpoenaed him he could have effectively blew the States case out the window.” (ECF 1:20). But Ms. Adair fails to explain how this individual feeling lumps or bumps on the victim's head days before his death would have affected the trial. Without further information, the Court should deem Petitioner's argument as conclusory and deny habeas relief on Ground Four. See Humphreys v. Gibson, 261 F.3d 1016, 1023 n. 2 (10th Cir. 2001) (rejecting habeas allegations because they were "conclusory ” (citation omitted)); see also United States v. Blanca-Leon, 317 Fed.Appx. 836, 838 (10th Cir. 2009) ("Conclusory assertions are insufficient to establish ineffective assistance of counsel.” (citation omitted)); Burgess v. Evans, 2014 WL 6967000, at *12 (W.D. Okla. Dec. 18, 2014) (denying habeas relief on ineffective assistance of counsel claim, finding the allegations conclusory because petitioner "d[id] not articulate which issues trial counsel failed to investigate.”).
VII. GROUND FIVE
In Ground Five, Petitioner alleges she is actually innocent of the crime of conviction. (ECF No. 1:21-28). Ms. Adair presented this argument to the OCCA as Proposition Three in her appeal of the Oklahoma County District Court's denial of her Amended Application for Post-Conviction Relief. See ECF No. 16-8:11-18. The OCCA addressed the claim in the context of determining Petitioner's claim that appellate counsel had been ineffective in failing to present a claim of actual innocence. See ECF No. 169:3-4. In doing so, the OCCA stated:
Claims of factual innocence are appropriate in post-conviction. However, such claims must be credible and generally require "new reliable evidence . . . that was not presented at trial.” In this regard, Petitioner's claim is not one of actual innocence because it merely challenges the evidence presented at trial as insufficient. To this extent, the claim could have been
included on direct appeal. Because it was not, the claim is waived. To the extent the claim relies on evidence previously addressed with regard to the absence of expert assistance, it is denied for the same reasons discussed therein.(ECF No. 16-9:4) (internal citations omitted). A stated, the Court may bypass the issue of procedural default and address the claim on the merits. The Court should exercise this option and conclude that habeas relief is not warranted on Ground Five.
The United States Supreme Court has never recognized freestanding actual innocence claims as a basis for federal habeas relief. To the contrary, the Court has repeatedly rejected such claims, noting instead that “[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceedings.” Herrera v. Colins, 506 U.S. 390, 400 (1993). In rejecting such claims, the Court has observed that “[f]ew rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” Id. at 401.
The Tenth Circuit has echoed the Supreme Court in this regard, stating: “actual innocence does not constitute a freestanding basis for habeas relief. "Farrar v. Raemisch, 924 F.3d 1126, 1131 (10th Cir. 2019). As a result, the Court should conclude that habeas relief is not warranted on Ground Five.
VIII. GROUND SIX
In Ground Six, Petitioner asserts that the trial court violated Petitioner's Due Process rights by failing to bifurcate her trial. (ECF No. 1:28-29). Petitioner raised this argument as a free-standing issue to the OCCA as Proposition Four in her appeal of the Oklahoma County District Court's denial of her Amended Application for Post-Conviction Relief. See ECF No. 16-8:18. The OCCA affirmed the Oklahoma County District Court's finding that the claim was procedurally barred. (ECF No. 16-9:2). However, the OCCA also addressed the merits of the claim when adjudicating Ms. Adair's argument that her appellate counsel had been ineffective in failing to argue, on direct appeal, that trial counsel had been ineffective for failing to object to the absence of a bifurcated trial. (ECF No. 16-9:2-3, 4-5). In doing so, the OCCA stated:
Petitioner claims that her counsel was ineffective for failing to insist that her trial be bifurcated. Petitioner testified at her trial. During direct and cross examination Petitioner was questioned about, and admitted to, prior felony convictions. This was not improper. Under these circumstances, there was no need for bifurcation. Counsel was therefore not ineffective for failing to object in this regard.(ECF No. 16-9:4-5). The Court could either provide deference to the OCCA's decision under the AEDPA, or adjudicate the claim de novo by choosing to bypass the issue of procedural default and proceed to the merits. See supra. Either way, however, the Court should conclude that habeas relief is not warranted on Ground Six because the United States Supreme Court has held that there is no federal constitutional right to a bifurcated trial. Spencer v. Texas, 385 U.S. 554, 568 (1967) ("Two-part jury trials . . . have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure.”).
XI. GROUND SEVEN
In Ground Seven, Petitioner alleges that the trial court violated her Due Process when it failed to instruct the jury on “the 85 percent rule”-a rule that she would have to serve 85% of her sentence before she is eligible for parole. (ECF No. 1:29-30). Petitioner raised this argument to the OCCA as Proposition Five in her appeal of the Oklahoma County District Court's denial of her Amended Application for Post-Conviction Relief. See ECF No. 16-8:19. The OCCA affirmed the Oklahoma County District Court's finding that the claim was procedurally barred. (ECF No. 16-9:2). However, rather than address the issue of procedural bar, the Court may consider the merits of the claim. See supra. In doing so, the Court should conclude that habeas relief is not warranted on Ground Seven.
Under the 85 percent rule, “[p]ersons convicted of: . . . [a]ny crime against a child provided for in Section 843.5 of this title . . . shall be required to serve not less than eighty-five percent (85%) of any sentence of imprisonment imposed by the judicial system prior to becoming eligible for consideration for parole.” Okla. Stat. tit. 21, § 13.1 (2002). However, the United States Supreme Court has not held that the Constitution requires the jury to be informed of a defendant's parole eligibility in a non-capital case. Indeed, the Court has only held that the Constitution requires such information to be provided to a jury in a limited set of capital cases. See, e.g., Simmons v. South Carolina, 512 U.S. 154 (1994) (holding, in a capital case, that the jury must be informed of parole eligibility when: (1) the defendant, if sentenced to life, will never become legally eligible for parole; and (2) the prosecution argues that the defendant presents a future danger). As a result, the Court should conclude: (1) the trial court's failure to instruct on the 85 percent rule did not render Ms. Adair's trial fundamentally unfair in a constitutional sense and (2) habeas relief is not warranted on Ground Seven. See Parker v. Sirmons, 384 Fed.Appx. 750, 752 (10th Cir. 2010) (rejecting habeas petitioner's claim that the trial court violated his due process rights by failing to instruct the jury regarding the 85 percent rule, stating: “Although the OCCA has held that trial courts are required to instruct jurors on the 85 percent rule before sentencing as a matter of state law . . ., the federal courts have not so held.”); Taylor v. Parker, 276 Fed.Appx. 772, 775-76 (10th Cir. 2008) (rejecting petitioner's contention, in a non-capital case, that he was entitled to habeas relief because the trial court failed to instruct the jury on Oklahoma's 85 percent rule).
X. GROUND EIGHT
In Ground Eight, Petitioner alleges that the trial court lacked jurisdiction over her case because the alleged crime occurred on “Unappropriated Public Land.” (ECF No. 1:3132). Petitioner's claim is based solely on Article 1, Section 3 of the Oklahoma Constitution which provides:
The people inhabiting the State do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation; and that until the title to any such public land shall have been extinguished by the United States, the same shall be and remain subject to the jurisdiction, disposal, and control of the United States. Land belonging to citizens of the United States residing
without the limits of the State shall never be taxed at a higher rate than the land belonging to residents thereof. No taxes shall be imposed by the State on lands or property belonging to or which may hereafter be purchased by the United States or reserved for its use.Okla. Const. art. 1, § 3; See ECF No. 1:31.
Federal habeas relief is available for violations of the United States Constitution, but not for violations of a state constitution. See Davis v. Reynolds, 890 F.2d 1105, 1109 n. 3 (10th Cir. 1989) ('“Alternative state claims, whether grounded in state statutes or the State Constitution, are not cognizable under 28 U.S.C. § 2254(a).” (citation omitted)). Consequently, the Court should conclude that Petitioner has failed to state a claim and habeas relief is not warranted on Ground Eight.
In adjudicating this claim on appeal from the Oklahoma County District Court's denial of postconviction relief, the OCCA rejected it, stating that the portion of the Oklahoma Constitution Petitioner relied on "has long been construed to disclaim jurisdiction over Indian lands only to the extent that the federal government claimed jurisdiction,” which did not occur in Petitioner's case. (ECF No. 16-9:5-6). In the Response, Ms. El Habti notes that the OCCA's statement accords with a statement made by the United States Supreme Court in Oklahoma v. Castro-Huerta, 142 S.Ct. 2486, 2503-2504 (2022)-that "consistent with the Oklahoma Enabling Act, the State has jurisdiction to prosecute crimes committed in Indian County unless state jurisdiction is preempted.” (ECF No. 16:26, n.17). Ms. El Habti goes on to argue that "to the extent [Ms. Adair's] state constitutional claim could be read to raise a federal claim because it derives from or is tethered to federal law (the Enabling Act), the OCCA's disposition of it was not an unreasonable application of federal law since it accords with Castro-Huerta." Id. However, the OCCA's decision was not based on the fact that the Oklahoma Constitution may disclaim jurisdiction over Indian lands if certain conditions are met, but instead that in Ms. Adair's case, those conditions had not been met. Thus, the Court should conclude that Petitioner did not raise a federal claim to the OCCA, nor did the OCCA adjudicate the same, requiring AEDPA deference by this Court.
XI. GROUND NINE
In Ground Nine, Petitioner alleges that the State of Oklahoma lacked jurisdiction over her criminal case because “the Major Crimes Act gives the federal government exclusive jurisdiction to prosecute child abuse committed by Indians in Indian Country.” (ECF No. 1:32). Exercising de novo review, the Court should conclude that habeas relief is not warranted on Ground Nine.
See infra.
A. Standard of Review
Petitioner raised Ground Nine to the OCCA as Proposition Seven in her appeal of the Oklahoma County District Court's denial of her Amended Application for PostConviction Relief. See ECF No. 16-8:21-24. The OCCA denied the claim, noting that it was based on McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), which that court had held to be not retroactive. (ECF No. 16-9:6). According to the OCCA, “[Because] Petitioner's conviction was final before McGirt was decided[,] [t]his proposition of error is therefor denied.” Id. However, the OCCA was incorrect-Petitioner's direct appeal was pending at the time McGirt was decided on July 9, 2020. See ECF Nos. 16-1 & 16-2; Beard v. Banks, 542 U.S. 406, 411 (2004) (noting that a defendant's conviction becomes final when availability of direct appeal in state court is exhausted and the time for filing a petition for writ of certiorari has elapsed or a timely-filed petition has been denied). Thus, because the OCCA's decision was based on an unreasonable determination of the facts (regarding the timing of Petitioner's conviction), the habeas court should apply de novo review to Ground Nine. See Harmon v. Sharp, 936 F.3d 1044, 1056-1057 (10th Cir. 2019). Under these circumstances, Petitioner bears the burden of proof to show, by a preponderance of the evidence, that she is entitled to relief. See Beeler v. Crouse, 332 F.2d 783, 783 (10th Cir. 1964); Smith v. Gibson, 197 F.3d 454, 458 (10th Cir. 1999).
B. No Habeas Relief
Ground Nine is based on Petitioner's allegations that the state court lacked jurisdiction over her criminal proceedings, essentially rendering the convictions void. See ECF No. 1:32-35. According to Petitioner, she is entitled to relief pursuant to the United States Supreme Court's holding in McGirt.
In McGirt, the petitioner, an enrolled member of the Seminole Nation, was convicted in Oklahoma state court of three serious sexual offenses which occurred on the Creek Reservation. McGirt, 140 S.Ct. at 2459. Relying on the Major Crimes Act (MCA), 18 U.S.C. § 1153, the petitioner argued the State lacked jurisdiction to prosecute him because he was an enrolled member of the Seminole Nation of Oklahoma and his crimes took place on the Creek Reservation. Id.
The MCA provides that, within “the Indian country,” “[a]ny Indian who commits” certain enumerated offenses “against the person or property of another Indian or any other person” “shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” 18 U.S.C. § 1153(a).
The key question before the Supreme Court in McGirt was, therefore, whether the Creek Reservation qualified as “Indian country” for purposes of the MCA. Id. Following a lengthy opinion outlining the history and the evolution of the land given to the Creek Nation as a reservation via a treaty with the federal government in 1833, the Supreme Court answered this question affirmatively. Id. at 2460-82.
Here, Ms. Adair alleges that pursuant to McGirt and the MCA, the state court lacked jurisdiction over her criminal case because her crime occurred in Indian Country and she is an Indian. (ECF No. 1:32-25). As stated, the MCA establishes exclusive federal jurisdiction upon proof of three elements: (1) occurrence of the crime in “Indian Country,” (2) by an Indian, (3) against another Indian. 18 U.S.C. § 1153(a). The Tenth Circuit Court of Appeals employs a two-step test to determine whether a person qualifies as an “Indian” for purposes of federal law-she must: (1) have some “Indian blood” and (2) be “recognized as an Indian by a tribe or by the federal government.” United States v. Diaz, 679 F.3d at 1187 (10th Cir. 2012). In the Petition, Ms. Adair states: “[T]he instant case regards the offense of Child Abuse, allegedly committed by an Indian, the Petitioner, which occurred on Indian Land, therefore proper Jurisdiction, under the Major Crimes Act, rightly belongs to the Federal Courts.” (ECF No. 1:34). Other than that single statement that she is an Indian, Ms. Adair offers no proof in support of such claim. Without such evidence, Petitioner has failed to sustain her burden of proof that she qualifies as an “Indian,” thus undermining her entire argument. As a result, the Court should conclude that habeas relief is not warranted on Ground Nine.
As noted by Respondent, Petitioner attached a handwritten list of “the roll numbers of her ancestors in the Choctaw nation as Freedman” to her Amended Application for Post-Conviction Relief. See ECF No. 16:49-50. But Ms. Adair did not mention such evidence or attach the same to the habeas Petition. See ECF No. 1.
XII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
It is recommended that the Court DENY the habeas Petition (ECF No. 1).
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by October 3, 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
XIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.